Patrick Kabat, an independent First Amendment expert, reviewed the lawsuit and News 5’s reporting and found the lawsuit troubling.
“What this seeks to do is withdraw speech from the public’s fear,” said Kabat, who is also the director of Case Western Reserve University's First Amendment and the Arts Project. “And so, when I look at this and I think about the merits, it's meritless.”
The Nov. 2, 2017 months-long News 5 investigation found:
A soft-billing program that charges out-of-town, at-fault parties for police response to accidents within Newburgh Heights
While this type of billing is not illegal, the Ohio Insurance Institute said bills like the ones Newburgh Heights uses should openly state payment is optional. Newburgh Heights’ bills do not.
Motorists say they were not made aware, either verbally or on the bill itself, that they have the option of paying or that the Village would not legally go after them if they did not pay. News 5 spoke to motorists who paid bills for police response to accidents in Newburgh Heights, and found one motorist who was not at-fault but was still billed.
The Village has no intention of collecting if the at-fault motorists don’t pay.
Numerous municipalities across Northeast Ohio do not use similar billing practices and, instead, deem this type of service as public.
For nine months, Newburgh Heights mayor and city representatives refused to do interviews and failed to respond to many records and information requests. You can read the full lawsuit here, which in part alleges:
“News 5 produced and aired a story by Walsh intended to sensationalize a lawful billing practice and smear Mayor Elkins and the Newburgh Heights Council members as the individuals behind what the Defendants called a ‘government-sanctioned scam.’ In truth, this so-called ‘scam’ involves nothing more than billing at-fault drivers for the Newburgh Heights police services that their negligent conduct requires.”
“Defendants gave no regard to the apparent legitimacy of this practice and its obvious public benefits, despite that Newburgh Heights officials spent hours responding to Walsh’s information requests informing him of the same. Instead, Defendants intentionally or recklessly published a series of misrepresentations and outright falsehoods to support a piece that reflects calculated and perverse political smear against Mayor Elkins, a rising star in the local Democratic Party, and his supporters in Newburgh Heights. The defamatory implications of Defendants’ intentional falsehoods are many, including that the Plaintiffs are crooks and stooges, unfit for public office.”
“The story also refers to the practice as ‘sinister’ and refers to those who are billed for the outlay of public services they requested as ‘victims.’”
“First, no one is ever charged for calling the Newburgh Heights police for an accident.”
Kabat said lawsuits like Newburgh Heights’ “tax news organizations for having spoken in the first place” and for having brought the concerns of citizens to the public.
“That’s just a fundamentally undemocratic thing in a democracy that cares about the free press,” he said. “If someone who gets one of these letters and pays it and feels scammed, surely they shouldn't be chilled against saying they felt scammed.”
News 5 reached out to Mayor Elkins for comment on the filing of the lawsuit. Instead his lawyer sent us this letter, where he reiterates allegations made in the lawsuit.
In the letter, Elkins’ attorney, in part, states: “And of course, we respectfully disagree with the ‘independent First Amendment attorney’ and look forward to having any such disagreements resolved by the Court.”
"We wholeheartedly stand by our story," said Jeff Harris, News Director of News 5. “Hard-hitting reporting on matters of public policy is the strength of our democracy. It's a sad day when elected officials think they can file lawsuits to chill the First Amendment.”